Recovering Expert Fees in Litigation: What Can Be Challenged?

Expert evidence can be essential to the successful conduct of litigation, but it can also represent one of the largest disbursements within a Bill of Costs. In complex personal injury, clinical negligence, professional negligence and commercial disputes, expert fees can quickly run into tens of thousands of pounds.

The fact that an expert’s evidence was necessary does not, however, mean that every fee charged will automatically be recoverable from the paying party.

At ARC Costs, we regularly encounter challenges to expert fees during costs negotiations and detailed assessment. These can relate to the hourly rate charged, the amount of time spent, the number of experts instructed or whether particular work was reasonably necessary at all.

Understanding these issues at an early stage can help receiving parties maximise recovery and paying parties identify legitimate areas of challenge.

Are expert fees recoverable in litigation?

Where a party is entitled to recover its legal costs, reasonable and proportionate expert fees may generally be included as a disbursement within the Bill of Costs.

However, recoverability is not automatic.

As with solicitors’ costs, the court can scrutinise whether the expert costs were reasonably incurred and whether the amount claimed is reasonable.

On the standard basis, proportionality can also have an important role.

This means a paying party can challenge expert fees even where the expert evidence itself was permitted and relevant to the proceedings.

Was the expert evidence reasonably necessary?

One of the first questions is whether it was reasonable to instruct the expert in the first place.

In many cases, this will be straightforward.

A clinical negligence claim may require evidence from several different medical disciplines. A serious personal injury case could involve experts dealing with care, accommodation, employment, rehabilitation and future medical treatment.

However, disputes can arise where multiple experts cover similar issues or where an expert is instructed to deal with a relatively minor point.

The benefit of hindsight should be avoided. The question is generally whether instructing the expert was reasonable based on the circumstances known at the time, rather than whether the evidence ultimately proved decisive.

Can an expert’s hourly rate be challenged?

Yes, expert hourly rates are regularly challenged during costs negotiations and detailed assessment.

There is no universal hourly rate that applies to every expert. Appropriate rates will depend upon factors including:

• The expert’s specialism.
• Seniority and experience.
• The complexity of the evidence.
• The availability of suitably qualified experts.
• The nature and value of the litigation.
• The work actually undertaken.

A highly specialised consultant dealing with an unusual area of medicine may reasonably command a substantially higher rate than an expert dealing with a more routinely encountered issue.

The important point is that the rate must be capable of justification.

What about excessive time?

Even where the hourly rate is reasonable, the amount of time claimed may still be challenged.

For example, a paying party may accept that an expert report was necessary but question why the expert required 20 hours to review documentation and prepare it.

This is particularly relevant where experts receive extensive medical records, financial documents or other substantial evidence.

The court may consider whether all of the time claimed was reasonably required and whether work could have been undertaken more efficiently.

Clear invoices providing a breakdown of the work completed can therefore be extremely important when defending expert fees.

Multiple experts and overlapping evidence

High-value litigation often requires several experts.

That does not necessarily make the resulting costs unreasonable.

ARC Costs regularly deals with complex cases involving numerous disciplines, particularly in catastrophic injury and clinical negligence claims. The involvement of multiple experts may be entirely justified where each addresses a separate issue.

Problems can arise where their work significantly overlaps.

A paying party may argue that two experts considered substantially the same evidence or that particular work duplicated tasks already undertaken elsewhere.

When preparing a Bill of Costs, it is therefore important that the role and necessity of each expert can be clearly identified.

Costs budgets and expert fees

In costs-managed cases, expert fees should also be considered in the context of the approved costs budget.

Expert expenditure is commonly included within relevant phases of the budget, and substantial departures from the amount previously approved may create difficulties later.

As recent case law concerning costs budget variations has demonstrated, simply spending more than anticipated does not necessarily justify increasing an approved budget.

Where genuinely significant developments result in additional expert work, the legal team should consider promptly whether a budget variation is required.

Waiting until detailed assessment to explain substantial additional expenditure may create unnecessary recovery risks.

Proportionality can make a significant difference

Expert fees may be reasonably incurred but still face challenge on proportionality.

This can become particularly significant where the total costs are high compared with the amount ultimately recovered or the issues in dispute.

However, value is not the only consideration.

The court can consider the complexity of the litigation, the importance of the issues, non-monetary relief and wider factors when determining proportionality.

This is particularly relevant in cases where the consequences for the claimant are significant despite the damages not necessarily reflecting the complexity of the expert evidence required.

Practical example: a complex clinical negligence claim

A good example comes from the type of clinical negligence matters ARC Costs regularly handles.

We recently dealt with a substantial Bill arising from a negligent childbirth claim that had continued for several years and required evidence from numerous different experts.

The paying party challenged both solicitors’ hourly rates and elements of the disbursements, including expert costs.

The mere fact that several experts had been instructed was not enough to demonstrate that the expenditure was excessive. The key issue was being able to show why the different disciplines were required and how their evidence related to the issues within the case.

Following Points of Dispute and Replies and subsequent negotiations, £220,000 was recovered against a Bill of approximately £233,000.

For receiving parties, this demonstrates the importance of being able to justify substantial expert expenditure rather than simply relying upon the complexity of the underlying case.

Robert Collington’s commentary

Robert Collington, Costs Lawyer at ARC Costs, comments:

“Expert fees are frequently challenged, particularly in complex litigation where there may be several different disciplines involved. The fact that an expert was properly instructed doesn’t necessarily mean every element of their invoice will automatically be recovered.”

He adds:

“The strongest position is where the file clearly demonstrates why the expert was required, what work they undertook and why the expenditure was reasonable. That evidence becomes particularly important where fees are substantial or the paying party alleges duplication.”

How ARC Costs can help recover expert fees

ARC Costs regularly deals with Bills containing substantial expert disbursements across personal injury, clinical negligence, commercial litigation and other complex proceedings.

For receiving parties, we ensure expert fees are properly presented within the Bill and respond to challenges through detailed Replies and negotiations.

For paying parties, we analyse whether expert expenditure was reasonably incurred, reasonable in amount and proportionate, identifying duplication or excessive claims where appropriate.

Expert fees can represent a significant proportion of the overall costs of complex litigation. Whether seeking to recover those fees or challenging them, careful analysis of the underlying evidence can make a substantial difference to the eventual costs outcome.

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